SC Bars Withdrawal Of Criminal Prosecution Against MPs/MLAs Without Permission Of High Court
The Supreme Court of India has laid down an important legal principle: criminal cases against Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) cannot be withdrawn without the permission of the High Court under Section 321 of the Code of Criminal Procedure (CrPC). This ruling is part of a broader judicial attempt to prevent political misuse of the legal process and to ensure accountability of elected representatives.
Here’s a detailed explanation of this ruling, including the relevant legal provisions, judicial reasoning, and important case laws:
🔷 Legal Provision: Section 321 CrPC
Section 321 CrPC allows a Public Prosecutor to withdraw a case with the consent of the court at any time before the judgment is pronounced.
Text:
“The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person...”
Traditionally, this has been used for various reasons: lack of evidence, public interest, or policy decisions. However, courts have scrutinized such withdrawals, especially in sensitive or high-profile cases.
🔷 Supreme Court Mandate: High Court's Prior Permission Now Mandatory
✅ Context:
A number of State Governments were observed to be withdrawing criminal cases pending against MPs/MLAs—often involving serious charges like corruption, rioting, hate speech, or violence—without judicial scrutiny.
To address this, the Supreme Court in 2021 (and further orders in 2022 and 2023) passed directions requiring High Court’s permission before withdrawing any case against sitting or former MPs/MLAs.
🔷 Key Case Law: Ashwini Kumar Upadhyay v. Union of India (2020 – Ongoing)
📌 Background:
This is a Public Interest Litigation (PIL) filed by Advocate Ashwini Kumar Upadhyay seeking directions to decriminalize politics by ensuring swift and fair trials against lawmakers.
📌 Supreme Court Orders:
In a series of orders (notably in March 2021 and August 2022), the Court directed:
No criminal case against MPs/MLAs shall be withdrawn under Section 321 CrPC without prior permission of the High Court.
All High Courts must ensure that Special Courts dealing with MP/MLA cases function efficiently.
Detailed reports must be submitted on pending cases, convictions, withdrawals, and trial status.
This ensures judicial oversight and reduces the politicization of the criminal justice process.
🔷 Judicial Reasoning
The Court’s rationale includes:
Public Accountability:
MPs/MLAs hold positions of public trust.
Criminal proceedings against them cannot be arbitrarily withdrawn, especially for political convenience.
Preventing Abuse of Power:
Successive governments have misused Section 321 to protect political allies.
The Court noted that many withdrawals are not based on legal merit but political pressure.
Rule of Law:
Lawmakers must be subject to the same legal processes as ordinary citizens.
The independence of the judiciary must be preserved by requiring High Court supervision.
Speedy Justice:
The Court emphasized fast-tracking trials against politicians to uphold public confidence.
🔷 Supporting Case Laws
1. Sheonandan Paswan v. State of Bihar (1987) – [SC]
The Supreme Court held that the power under Section 321 CrPC is not absolute and must be exercised in good faith, in the interest of justice, and not to stifle prosecution arbitrarily.
2. Rajender Kumar Jain v. State (1980) – [SC]
The Court emphasized that withdrawal under Section 321 requires judicial application of mind and cannot be mechanical.
3. Subramanian Swamy v. Union of India (2016) – [SC]
Though dealing with defamation, the Court stressed higher standards for public officials and emphasized the need for clean politics.
🔷 Practical Implications
All State Governments must now seek High Court permission before withdrawing criminal cases against MPs/MLAs.
Prosecutors must justify withdrawals with cogent legal reasons—not just political expediency.
High Courts will review the nature of the offence, stage of the trial, and public interest before granting permission.
Prevents blanket withdrawals issued just before elections or after government changes.
🔷 Conclusion
The Supreme Court's direction that no criminal case against MPs/MLAs can be withdrawn without the High Court's permission under Section 321 CrPC is a major step in strengthening rule of law and ensuring political accountability. It curbs political misuse of prosecutorial discretion and protects the integrity of the judicial system.
This measure is part of a broader judicial movement to decriminalize Indian politics and restore public trust in democratic institutions.
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